Did you ever have an employee in your workplace defend inappropriate remarks by becoming armchair constitutional scholar and citing the First Amendment to justify the right to make comments? Next time that happens, kindly remind your John Marshall In Residence that the First Amendment only protects them from criminal prosecution, not discipline in the workplace.
This week the US Supreme Court clarified the standard by which online posts can be used as fodder for criminal prosecution. Under the previous standard, prosecutors only needed to show that a reasonable person could find the posts threatening in order to gain a conviction. The Court said that standard is too low.
Chief Justice John G. Roberts Jr. (who in his opinion incidentally "spit," as the kids would say, some Eminem lyrics) wrote that "negligence is not sufficient to support a conviction. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant's mental state." And while the Court did not specifically say what the required mental state must be, it did indicate that the defendant must either know he or she was making a threat, or know that it would be taken as a threat.
Just remember that while this decision will have far-reaching implications in criminal law, it will have none in your workplace. So while the Keyboard Tough Guys or Tough Girls in your employ may rejoice in their new-found online freedom to spew venom, remind them that everything they post on their personal social networking pages can be used to discipline them.
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